Twitter is opposing an order it turn over tweets belonging to one of its users.

Twitter has asked a New York state judge to throw out a court order requiring it to turn over three months worth of messages posted by an Occupy Wall Street protester being prosecuted for disorderly conduct.

In a motion (PDF) filed on Monday in New York City Criminal Court, Twitter lawyers argued the city's district attorney's office is overstepping its authority in ordering the tweets and other subscriber info of Malcolm Harris, whose handle on the microblogging site is @destructuremal. Prosecutors seeking the data failed to get a court warrant based on probable cause, making an order they obtained earlier a violation of federal law and the Constitution's prohibition against unreasonable searches and seizures, the Twitter brief argued.

"If the order stands, Twitter will be put in the untenable position of either providing user communications and account information in response to all subpoenas or attempting to vindicate its users' rights by moving to quash these subpoenas itself—even though Twitter will often know little or nothing about the underlying facts necessary to support their users' argument that the subpoenas may be improper," Twitter's attorneys argued.

Rather than get a warrant based on probable cause, the New York City prosecutors cited the Stored Communications Act, which requires only that investigators show the requested information is relevant to an ongoing criminal investigation. After receiving the demand, Twitter provided notification to Harris, who challenged the demand on the grounds the information prosecutors were seeking fell outside the limitations of the statute. Last month, New York Criminal Court Judge Matthew A. Sciarrino, Jr. denied Harris's motion (PDF), arguing he had no legal standing to challenge the subpoena because he had no proprietary interest in the data investigators sought.

Twitter's brief argued that Sciarrino's order contradicts the terms of service provisions guaranteeing users "retain rights to any content [they] submit, post or display" on the site.

"To hold otherwise imposes a new and overwhelming burden on Twitter to fight for its users' rights, since the order deprives its users of the ability to fight for their own rights when faced with a subpoena from New York State."

Monday's brief also argued that Sciarrino's order would force Twitter to violate federal law because the Constitution's Fourth Amendment requires service providers to disclose user communications only when presented with a valid search warrant. As support, the attorneys cited a 2010 ruling from the Sixth Circuit Court of Appeals that said government prosecutors couldn't rely on the Stored Communications Act to the e-mail of a man they were investigating for fraud. They also said the statute doesn't cover communications that are less than 180 days old. Prosecutors investigating Harris are seeking tweets sent from September 15 to December 31 of last year, meaning some of the requested information won't be 180 days old until the end of June.

The Twitter attorneys also cited a unanimous US Supreme Court ruling from last year holding that FBI investigators had to obtain a search warrant before using a GPS device attached to a suspect's vehicle to track his whereabouts for four weeks.

"If the Fourth Amendment's warrant requirement applies merely to surveillance of one's location in public areas for 28 days, it also applies to the District Attorney’s effort to force Twitter to produce over three months worth of a citizen’s substantive communications, regardless of whether the government alleges those communications are public or private," the brief argued.

Twitter has frequently gone beyond the call of duty in notifying users of government demands to turn over their information. In late 2010 or early 2011, site representatives informed users who were named in a previously sealed court order that sought IP addresses associated with WikiLeaks and several of its supporters. Both Google and California-based ISP Sonic.net, according to The Wall Street Journal, fought for the right to inform at least one of the users of secret orders seeking the data. According to an attorney representing WikiLeaks founder Julian Assange, Facebook, and Skype (which was then owned by eBay) received demands for similar information and never disclosed how they responded.

"There's this issue of confidence in third-party service providers and how much they're going to make the government fight for user information," Venkat Balasubramani, a legal blogger and technology lawyer in Seattle, told Ars. "Twitter is one of the companies that's building a reputation of a company that will fight the battle. From that standpoint twitter is notable."

Indeed, the Electronic Frontier Foundation, in a in a side-by-side comparison dubbed Who Has Your Back, last year gave Twitter props for regularly warning users of data demands and fighting for user privacy. Other companies, including Comcast, MySpace, and Skype, didn't fare as well in the analysis.

Article updated to correct details about document demand received by Twitter from prosecutors investigating WikiLeaks and to provide additional details about secret orders sent to Google and Sonic.net.

It's refreshing to realize that at least one social networking site (in comparison to MySpace / Facebook's track record) is standing up for its consumer's privacy rights. Hopefully Twitter's Motion to Quash is granted, NYC DA is clearly overstepping its Due Process bounds

all this over a violation with a maximum fine of $250. fucking ridiculous.

What's the $ value where caring whether or not the limits imposed by the Bill of Rights are actually limiting starts to kick in?

that was kinda my point - the crime is so insignificant that it's completely obvious that the government is engaging in a fishing expedition and/or trying to make an example of him. either way, it's not cool.

This is not nearly as severe as what the FBI did with the Patriot Act's loosened requirements for user information, although I realize that's no longer a trending topic. Since nothing was really done about that I don't know why this kind of development would be surprising to anyone.

Having spent almost 40yrs. dealing with lawyers I can tell you two things. Each side can approach the same scenario with completely opposing views and claim they're in the right. Lawyers depend on people being uneducated and unwilling to buck the supposed authority of the demand. They tend to address people in absolutes like "I require you to provide the following blah blah blah you MUST comply (because I told you so)". Unfortunately the Feds tend to back it up by arresting the non compliers and then jacking them up on some bogus charge. Look at Conrad Black, not that I like the man, but he was a Canadian, who performed an act in Canada that was NOT a crime in Canada yet got jacked up by American courts and convicted.

Another reason to totally hate and disrespect this worthless Government.I may have a real dislike for the GOP and their far-right stance but I am no friend of Obama.He is only the lesser of two evils right now and that may change by election.

I wonder if this guy will be the first victim of NDAA 2012. Find himself swept up from his house in the middle of the night by armed military personnel, and shipped over to Egypt to have his testicles forever electrocuted. Dissenters beware.

Look at Conrad Black, not that I like the man, but he was a Canadian, who performed an act in Canada that was NOT a crime in Canada yet got jacked up by American courts and convicted.

Which Conrad Black are we talking about? Because if it's the one I'm thinking of, mail fraud and obstruction of justice are crimes in Canada, Hollinger is an American company and he renounced his Canadian citizenship in 2001.

Anyway, props to twitter, I long ago started expecting any web-based company to sell me out at a moments notice.

If Twitter loses in court, it would be interesting to see what would happen if they just refused to hand over the data. I'm a NY resident who thinks this subpoena is grossly overreaching, and I hope the NY DA gets told to piss off. If there's probable cause, get the judge to sign a warrant. He's already indicated which side he's on, so he'd surely sign.

It seems to me that a warrant would be subject to later judicial review, while a subpoena would not. So maybe the judge/DA cabal are worried about future damage to their reputation. That is to say, beyond the damage they're already doing with their petty actions over something that's about on the level of a speeding ticket.

Another reason to totally hate and disrespect this worthless Government.I may have a real dislike for the GOP and their far-right stance but I am no friend of Obama.He is only the lesser of two evils right now and that may change by election.

What does this have to do with Obama? New York State judge and New York City prosecutor.

But if there's a polarizing national figure to drag into the mix, I guess that works, also.

I always bag on twitter for further dumbing down online communications, but this is at least the 2nd time they've taken a stand (and spent some money) defending user privacy. We need more companies that don't just roll over as soon as the 'authorities' start poking their noses around.

Another reason to totally hate and disrespect this worthless Government.I may have a real dislike for the GOP and their far-right stance but I am no friend of Obama.He is only the lesser of two evils right now and that may change by election.

What does this have to do with Obama? New York State judge and New York City prosecutor.

But if there's a polarizing national figure to drag into the mix, I guess that works, also.

It's germane because of Obama's stance on the NDAA and Patriot Act. Both items which give the government a workaround to due process rights in the country. This prosecutor seems to be taking his cues from those acts. The NDAA is especially frightening and should not at all pass Constitutional muster. There's a real and tangible reason that the architects of the Constitution and Bill of Rights wanted even the most despicable scum to be given due process under the law. That is the slippery slope we find ourselves on when the government decides who is and is not afforded due process. Be wary as peaceful protesters (it is lawful to protest after all) may soon find themselves labeled as terrorists and thus become subject to infinite detention without any form of due process. If anything written in this Twitter account was necessary to prosecute this man, get a warrant signed by a judge. Don't game the system to try and strike fear into people who would like to exercise their right to protest.

I do wonder how long until the government begins to use pushes like this to access more physical personal info.

"Clearly, due to the data and/or information being marked private, we don't know what it is or says; but we do believe it may or may not be relevant to our case. Being as such, we disrespectfully request access to your client's: apartment, safety deposit box, and any other possibly (ir)relevant something so that we may attempt to determine if we should seek damages against those others coordinating or at the very least listening to or even ever seeing your client."

Don't get me wrong, I'm not against the government going after whoever they need to when it is explicitly appropriate. It appears to me that the digital age has (is still) advanced faster than the government is willing create appropriate laws. In many cases, they seem to declare than any information stored outside a persons home is now public domain and that is simply not the case. Many companies supply a service (paid or not). A service that people subscribe to in any way guarantees them at least some privacy unless noted otherwise.